Rohrie and Robbins

[2008] FamCA 863

FAMILY COURT OF AUSTRALIA

ROHRIE & ROBBINS [2008] FamCA 863

FAMILY LAW – CHILDREN – with whom a child lives and spends time – applicant mother failed to appear in Court for first day of trial or file questionnaire – whether matter to be dealt with by default – consideration of provisions of s 60CC – final orders made – child to live with father and spend time with mother as agreed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Rohrie

RESPONDENT: Mr Robbins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 2499 of 2002

DATE DELIVERED: 8 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 8 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr M.A. Boehm

SOLICITOR FOR THE RESPONDENT: Adelaide Family Law

INDEPENDENT CHILDREN’S COUNSEL: Mr R.W.Winter

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

1. That the father have the sole responsibility for the long term care, welfare and development of the child … born on … October 2001.

2. That the child live with the father.

3. That the mother spend time with the child at times to be agreed between the parties and upon such conditions as may be agreed between the parties.

4. That the appointment of the Independent Children’s Lawyer be discharged.

5. That all applications are otherwise dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Rohrie & Robbins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2499 of 2002

MS ROHRIE

Applicant

And

MR ROBBINS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. These are proceedings which are brought on before me today for the first day of trial.  The proceedings concern the welfare of the child of the parties, a son who was born in October 2001 and is therefore aged nearly seven.  The child has been living with the father, Mr Robbins, since the parties separated in 2002. 

2. There have been proceedings on foot, commencing as long ago as May 2002.  Orders were made on 16 May 2002.  Proceedings were again then commenced in November 2004.  Those proceedings were finalised on 9 February 2006, when orders were made which provided that the child reside with the father and that the mother have contact with the child at times to be agreed and on conditions as agreed.

3. That remained the situation until shortly thereafter, in June 2006, when the mother again started proceedings.  Since then she has filed some documents, and there have been interim orders made. 

4. The matter was set down for trial by way of first day before me and certain directions were made, including that the parties file and serve their questionnaires.

5. The Court now has the benefit of the parenting questionnaire filed by the father, the family assessment prepared by Ms L dated 13 April 2007 and the children and parents issues assessment completed by Ms D earlier this month.

6. The mother was at one stage represented.  Once there was a notice of ceasing to act filed, both the Independent Children’s Lawyer and the father's solicitors have written to the mother, putting her on notice, specifically, again, that the proceedings were listed before me this afternoon and again confirming that, if she did not comply with the orders, they would be seeking orders by default when the matter came on before the Court.  I have as exhibit 1 those letters of 15 July 2008 and 19 August 2008.  The mother has failed to file a questionnaire and has failed to appear at Court today.

7. In considering whether I should deal with the matter by way of default, today, I take into account that that is a procedural order and that the welfare of the child is not necessarily the paramount consideration.  However, in children's matters it is a matter which I can take into account.  In particular, I take into account that there has been previous default by the mother in proceedings, and that the concerns are also raised in Ms L’s report about the mother's capacity to deal with these proceedings and her responsibilities as a parent.  It is also noteworthy that the mother did not participate in the assessment carried out by Ms D, with her report dated 3 October 2008. 

8. The Court needs to take into account, when making orders by default, the material which the Court is obliged to consider in the provisions of section 60CC, which require the Court to take into account those matters when determining what is in the best interests of the child.

9. I take into account the matters set out in those provisions and in particular take into account the Aboriginal background of the mother and the need to consider that. 

10. I am satisfied that the arrangements proposed by the father for the ongoing care of the child take into account all the appropriate matters that need to be considered in the best interests of the child, save and except, of course, the need to encourage a relationship between the child and the other party.  However, that responsibility, whilst it rests upon the father, can only rest upon the father to the extent that he has the mother's cooperation and that such a relationship is appropriate.

11. Bearing in mind that the Court has no evidence before it which suggests that the mother follow the recommendations of Ms L, in relation to supervised time spent at the children's contact service, nor that she has attended drug and alcohol counselling with a view to providing a report for the Court, those matters remain to be considered carefully before the father is required to consider his obligations to encourage a relationship between the child and the mother.

12. I am satisfied that the father has the appropriate capacity to provide for the care of the child, including the emotional and psychological care of the child, and to that extent rely upon the report of Ms L and the material filed in the father's questionnaire.

13. Taking into account the default of the mother and the material already on file, I am satisfied that the orders that the father seeks, which are supported by the Independent Children’s Lawyer, are orders that are in the child’s best interests.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  17 October 2008